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BVC Civil Procedure

BVC Civil Procedure. Statements of Case (Part 2). Amendments. CPR 17 Not an excuse for omissions/sloppy drafting Any number allowed before service (17.1(1) After service agreement or court’s permission is needed (17.1(2). Amendments. Minor amendments should be agreed to:

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BVC Civil Procedure

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  1. BVC Civil Procedure Statements of Case (Part 2)

  2. Amendments • CPR 17 • Not an excuse for omissions/sloppy drafting • Any number allowed before service (17.1(1) • After service agreement or court’s permission is needed (17.1(2)

  3. Amendments • Minor amendments should be agreed to: • Hannigan v Hannigan (2000) I.L.R July 3rd • Mc Philemy v Times Newspapers Ltd [1999] 3 All ER 775 • Costs of amendments should also be agreed • Proportionality is important – late amendments not often granted

  4. Amendments Post-Limitation • S35 of the Limitation Act 1980 and CPR 17.4 and 19.5 • Payabi v Armstell Shipping Corpn. [1992] 2 WLR 898 • a) to add or substitute a new cause of action which arises out of the same facts or substantially the same facts as the original cause of action • eg: Lloyds Bank plc v Rogers (1999) 38 EG 187

  5. Amendments Post-Limitation • to correct a mistake in the naming (17.4) or joinder (19.5) of parties. • Teltscher Brothers Ltd v London and India Dock Investments Ltd [1989] 1 WLR 770 • Gregson v Channel Four Television Corporation (The Times 11th August 2000

  6. Amendments Post-Limitation • “the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party’s name; or • Any claim made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action” (s35(6) • Morgan Est (Scotland) Ltd Ltd v Hanson Concrete Products Ltd [2005] All ER(D) 251 (Feb) held that “in mistake” should not be construed too restrictively • The Sardinia Sulcis [1991] 1 Lloyd’s LR 201 should not be followed.

  7. Amendments Post-Limitation • (c ) to alter the capacity in which a party claims if that is a different one to the one in which he brought the claim • Haq v Singh [2001] 1 WLR 1594

  8. How to amend • If permission is needed: • application filed along with a copy of the statement of case and the proposed amendments. • No hearing will be necessary. No evidence needs to be filed in support but if the matter is being contested it may be necessary to. • If permission is given - amended statement of case must be filed within 14 days of the amendment (PD17.1.4) and also served on the other parties • The court will make an order as to when any consequential amendments need to be made and who should pay the costs of these

  9. How to amend • amended statements of case must be re-verified with a new statement of truth • should state how it was amended (whether by order dated…. or by consent) • does not have to show the old text • if it does the court may direct that the new text be shown by either a different colour or “by use of a numerical code in a monochrome computer generated document” (PD17.2.2(2)

  10. Amendment Colours • Old text should be struck through with the appropriate colour • (1) red • (2) green • (3) violet • (4) yellow • (PD17.2.2(4)

  11. Requests for further information • Part 18 • Of the court’s own motion (18.1) or by the parties • PD18.1.3 -in a single comprehensive document and not piecemeal • Usually at allocation - may be made earlier: Honey v Newman(1997) CLY 634 ; • Corporation Nacional del Cobre de Chile v Metallgesellschaft AG Ltd (Times Jan 6th 1999)

  12. Requests for further information • A Part 18 request must : • a) identify itself as a Part 18 request • b) be headed with the court name, title and claim number • c) set out in separate numbered paragraphs each request • d) where a request relates to a document, identify that document and the words or paragraphs to which the request relates • e) state the date by which the response is expected – this should give “a reasonable time” (PD 18.1)

  13. Requests for further information • A Part 18 request should not: • Merely lead to new enquiries(Det Danske Hedelskabet v KDM International plc [1994] 2 Lloyds Rep 534) • Be a “fishing expedition” (Rofe v Kevorkian [1936] 2 All ER 1334 ) • CPR 53.3 – restrictions in defamation claims

  14. Responses to requests • (PD 18.2) • a) headed with the name of the court, title and number • b) identified as a response to the request • c) repeat the text of the request and set out under each paragraph the answer • d) where a request relates to a document, identify that document and the words or paragraphs to which the response relates.

  15. Responses to requests • Also they must: • be verified with a statement of truth • a copy of them must be filed with the court.

  16. If no response is made • after (a) the time stated for responding and (b) 14 days after service have elapsed, an application can be made to the court to make an order without a hearing (PD18.5) • As long as the questions meet the Part 18 criteria the court will order that the party respond within a given time or the statement of case will be struck out. • Parkin v Brew (1999) CL May 38

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